REASONING WITH PERSUASIVE PRECEDENT: THE ROLE OF PERSUASIVE AUTHORITY IN THE LAW

This paper attempts to draw attention to the role of persuasive authority in the law, by providing a critical review of Frederick Schauer’s influential account of persuasive authorities as optional authorities. Although recognizing that Schauer highlights some important features of the notion, it is argued that, as long as his interpretation leaves no room for theoretical authority in the law, it fails to account properly for one of the main roles of persuasive authorities, namely, to provide future courts with reasons to distinguish their case from previous court’s decisions. It is also suggested that persuasive authorities are best understood as theoretical authorities providing practical reasons. The article concludes with some final remarks on the consequences of the adopted view for our understanding of the law in general.


INTRODUCTION 1
Although binding precedents have always drawn the attention of legal scholars in the common-law tradition, the role of persuasive precedents has usually been overlooked in comparison with their binding counterpart 2 .This lack of attendance is not universal, and there have been many important recent contributions in the field 3 .However, as Chad Flanders has rightly noted, most of the literature fails to treat persuasive precedents as an independent subject of study "in its own right" 4 .Persuasive precedents are still viewed as precedents only in a "loose" meaning of the term, compared to the "strict" use of the word when applied to binding precedents 5 .The very fact that they are usually referred to simply as non-binding precedents is a clear indicator of the residual character usually attributed to persuasive precedents.

1
For helpful comments and suggestions, I am grateful to the two anonymous reviewers for Teoria Jurídica Contemporânea.I am only too aware that I have not always followed their advice.I am also grateful to Cláudio Michelon and his course "Reasoning With Precedent" at the University of Edinburgh, for encouraging me to think and write on this subject.This paper was written while studying at the University of Edinburgh with funding provided by CONICYT -PFCHA/Concurso para Becas de Magíster en el Extranjero 2016 (73170364).This parasitic account of case-based considerations which are not binding on a court, but are nonetheless relevant, is potentially misleading, since, as lawyers in civil law countries know very well, the former is in no way dependent on the existence of the latter.

Although the word
Therefore, to understand the role played in legal reasoning by persuasive authorities 6 is not only a parochial question of the common law, but rather a general question about the operation of jurisprudence in general 7 .
What is the role of persuasive authorities in the law?It has been said that the main role of persuasive authorities in the law is to show ways in which "the fetters of binding precedent can be slipped" 8 .
But this is not completely accurate.Although the word binding itself immediately conjures up associations with its literal meaning of being 'fettered' or in some way physically constrained to do something 9 , this is clearly not what binding precedents do.As Sir Carleton Allen stated many years ago, We say that he (a judge) is bound by the decisions of higher courts; and so he undoubtedly is.But the superior court does not impose fetters upon him; he places the fetters on his own hands.He has to decide whether the case cited to him is truly apposite to the circumstances in question and whether it accurately embodies the principle which he is seeking.The humblest judicial officer has to decide for himself whether he is or is not bound 10 .
What this "mystifying" 11 account of binding precedents tries to explain is that precedents do not bound in the sense that courts must follow a decision.Rather, courts are bound "to either 'follow' or 'distinguish' the previous court's decision." 12What binding precedents seem to do is to impose an argumentative burden on future courts13 .If a future court is not convinced by a previous

BRONAUGH
In section (2) I provide a brief account of the differences between theoretical and practical reasons and theoretical and practical authorities.
The main part of this paper -sections (3) to (7) -is a critical engagement with Schauer's account of persuasive authorities as practical authorities.Section (3) introduces Schauer's idea of authority and explains his distinction between substantive and content-independent reasons by comparing it to Raz's distinction between first-order and second-order reasons.Section (4) provides a critique of Schauer's claim that the idea of a "persuasive authority" is self-contradictory.Section (5) develops further the idea of authority providing second-order reasons, specifying that these reasons are exclusionary or pre-emptive practical reasons.Section (6) explains Schauer's conception of persuasive authorities as optional authorities providing pro tanto reasons for action.Section (7) shows how the idea of optional authorities is grounded on Schauer's account of exclusionary reasons as including, after all, the possibility of considering first-order reasons.This account is compared critically with Raz's views on exclusionary reasons.
Sections (8) and ( 9) are aimed at providing an alternative account of persuasive authorities as having theoretical authority.Section Finally, section (10) provides, as a mode of conclusion, some consequences of the proposed approach.

REASONS AND AUTHORITY: THEORETICAL AND PRACTICAL
It may be useful to begin by providing a brief and basic parallel between theoretical and practical reasons as usually understood in this context.
In the standard account, theoretical reasons are reasons to believe that something is true, whereas practical reasons are reasons to decide or to act in a certain way.Although a distinction might be drawn between reasons for deciding and reasons for action -since "it is possible that I make the right decision to do the wrong thing" 14 -they are both practical reasons in the sense that they are concerned with what one ought to do or what one ought to decide in order to do something.
The distinction between reasons for belief and reasons for action accounts for another parallel distinction between theoretical and practical authorities15 .Theoretical authorities are regarded as having some higher degree of knowledge or a certain skill that gives their opinions more weight than the opinions of an average person.In a word, theoretical authorities are experts in a certain field.When a theoretical authority uses his authority to judge of a certain issue, his judgement provides a strong reason to believe that what he says is true.This is because their judgements serve as an intermediate between the substantive reasons supporting the authoritative claim and the rest of us who are unaware of those reasons.Therefore, the assertion that p is the case by a theoretical authority gives us "a reason to believe that there are (other) good reasons supporting the 14 MICHELON, 2006, p. 116.On the distinction between reasons for deciding and reasons for action, see MICHELON, 2006, pp. 114-117.truth of p" 16 .As Grant Lamond has noted, p represents an all-thingsconsidered judgement: it provides a reason to believe that, in the balance of reasons, p is more likely to be true than not 17 .By contrast, practical authorities provide reasons to decide or to act in a certain way.As Raz argues, "questions of who has authority over whom are practical questions" 18 because they bear on "what one ought to do" 19 .When a practical authority commands us, for example, to "Be quiet!" he is not only providing us with a reason to believe that he prefers us to be quiet.He is also, by the mere fact of saying so, giving us a very good reason to be quiet.If someone dared to ask why he is supposed to be quiet, the authority may give him substantive reasons that justify his judgement, but, since he is the authority, he may rightly reply: "Because I said so!".In other words, the fact that a practical authority commands us to decide or to do p gives us a reason to do it not because, in the balance of reasons, p is more likely to be the right thing to do, but rather because p is to be obeyed irrespective of its substantive merits.

SCHAUER ON AUTHORITY: SUBSTANTIVE AND CONTENT-INDEPENDENT REASONS
In an influential article for the Virginia Law Review 20 , Frederick Schauer claimed that persuasive authorities are better understood as having practical authority over future courts.He also claims that legal nonbinding sources are best conceived as optional rather than as persuasive authorities.In the next paragraphs, I shall review what I consider are some of the most important insights in Schauer's account.
According to what Schauer calls the "conventional wisdom" 21 about the idea of authority, "the characteristic feature of authority is its contentindependence.The force of an authoritative directive comes not from its content, but from its source" 22 .Authority "provides reasons for action by virtue of its status and not by virtue of the intrinsic or 16 LAMOND, 2010, p. 19. 17 Cf LAMOND, 2010, p. 19 the idea of content-independence is "unlikely to be controversial" 34 , the truth is that some controversy over the issue does exist: there seems to be no clear definition of the idea 35 and, more importantly, there seems to be no clarity as of what a content-dependent reason would look like, since it has also been claimed that all reasons are, in some sense, content-independent 36 .Now, even assuming the soundness of the idea of contentindependence, I still remain unconvinced about Schauer's claim that persuasion and authority are "inherently opposed" notions.
I believe he would need to prove not only that persuasion and authority are opposed when someone is not convinced by substantive reasons, but also that it could not be possible for someone to be persuaded of the substantive reasons because of -or at least aided by -the authoritative nature of the source providing such reasons.I think experience could show many cases in which we are more inclined to see the truth of substantive reasons aided by the authority of someone whose judgement we trust.Thus, for instance, when a student asks a question, and the right answer and the right reasons for that answer are given by a peer student, the first student would probably still want to know what the teacher has to say in the matter.And if the teacher agrees with the answer given by the other student and says so, I think it would not be far from the mark to claim that he is persuading the first student by his authority.
Moreover, there are cases in which the only substantive reasons are authoritative reasons.Historical facts are probably the best example of authoritative sources that are also used as substantive reasons.We are persuaded of, say, Napoleon's historical existence, and the only substantive reasons we could give are a number of authoritative sources that say so.
To sum up: there are cases in which persuasion and authority are not "inherently opposed": First, when someone is being persuaded aided by an authoritative source, and, second, when someone is 34 SCHAUER, 1994, p. 499.being persuaded because of the authoritative nature of that source, and there are no other kinds of substantive reasons available 37 .

A REASON TO EXCLUDE: PERSUASIVE AUTHORITIES AS EXCLUSIONARY REASONS
So what kind of authority, if any, do "persuasive authorities" have?
As I will show, according to Schauer, if they are to maintain their legal authoritative character, then non-binding authorities are better conceived as having practical authority for the court which has to decide the case: they provide the court with a second-order reason to decide or to act irrespective of their substantive merits.
Authoritative to be balanced against substantive reasons: they exclude those reasons from the deliberation process altogether.
To be sure, an authoritative reason can count as both a good firstorder reason and as an exclusionary second-order reason at the same time 42 .As Schauer puts it, both kinds of reasons may proceed

37
An anonymous reviewer objected to the reasoning outlined above on the grounds that Schauer's point would be that a person cannot treat something as a reason of practical authority and as a substantive reason at the same time.I agree with the reviewer only insofar as that is Schauer's point when dealing with authority in the law.I would also agree with the reviewer if it is conceded that, for Schauer, as for Raz, "authority is a practical concept" (RAZ, 1979, p. 10).However, in this part of his argument, he makes no distinction between theoretical and practical authorities.He expressly mentions that content-independent reasons are "reasons to act, decide, or believe" (SCHAUER, 2008, p. 1935. Emphasis added).Therefore, to show that authoritative reasons can serve as a substantive reason to believe that something is true -as I have tried to show by stressing the idea that one can be persuaded by authorityis, in my view, enough to prove the unsoundness of Schauer's claim as a general claim about persuasion and authority.RAZ, 1990, p. 39. 39 SCHAUER, 2009, p. 61.Emphasis added.40 RAZ, 1979, p. 22. Emphasis added.RAZ, 1990, p. 59. 42 See RAZ, 1979, p. 22 If so, how are "persuasive authorities" treated by courts?Do they provide first-order reasons or second-order reasons?This is an empirical matter.Depending on the case, they may be treated as one or the other, or even as both at the same time.However, according to Schauer, non-binding sources are usually used by courts as providing content-independent rather than substantive reasons:

41
Although courts often cite legal sources because they are genuinely and substantively persuaded, many -perhaps even most -judicial uses of so-called persuasive authority seem to stem from authority rather than persuasion.(…) It is not that courts follow these optional sources because they are persuasive; rather, courts follow them because of their very existence 45 .

OPTIONAL AUTHORITIES AND PRO TANTO REASONS
When legal sources are treated as authorities, they must be viewed as providing practical reasons for the court deciding the case.
However, these sources are not mandatory or binding in any meaningful sense.In fact, courts can ignore these sources without breach of duty.This feature of authoritative yet not mandatory sources leads Schauer to designate them as optional authorities.
Although the idea of an "optional authority" may seem as selfcontradictory as the idea of a "persuasive authority", Schauer insists this it is not the case."Even optional authorities can be genuinely authoritative" 46 .For him, there is no need for real authorities to be binding in the sense that they are "absolute or non-overridable" 47 .
"Sources can also function as authorities without necessarily prevailing over all other sources, or even all other reasons for a decision" 48 .Schauer argues this point thus: 43 Cf SCHAUER, 2008, p. 1941. 44 Ibid.

SCHAUER
[ The existence of an authoritative reason is not inconsistent with there being other outweighing authoritative reasons or outweighing reasons of other kinds.When a court rules that even the crisp rules of an applicable statute must yield at times to the demands of justice, it is saying that an undeniably applicable statute is to be understood as prima facie but not absolutely outcome producing.In this sense, it is certainly true that most authorities are not binding or controlling in an absolute way.
And the suggestion that treating some source as authoritative requires that the prescriptions emanating from that source must be followed, come what may, is simply not part of the concept of authority at all 49 .
In other words: the fact that an authority is "optional" does not mean that it cannot provide exclusionary reasons to act.Being an optional authority does not transform its instructions into first-order reasons.What Schauer claims is that the reasons for action provided by an optional authority, while still being exclusionary reasons, are not decisive, but merely pro tanto ("prima facie" 50 ) reasons: they are reasons in favor of a certain course of action, but they are not necessarily sufficient to justify it.
To be clear, to claim that optional authorities provide merely pro tanto and not decisive reasons is not to say that a case cannot be decided on pro tanto reasons.Quite the contrary: in the absence of countervailing considerations, pro tanto reasons will give the court reasons which are able in themselves to decide the case.But these reasons can be outweighed by other "authoritative reasons or outweighing reasons of other kinds" 51 , that is, by other second-order reasons or by strong first-order reasons.
49 SCHAUER, 2008SCHAUER, , p. 1953SCHAUER, -1954. .Emphasis added., 2008, p. 1953.Following the common usage, Schauer speaks of prima facie reasons as a proxy for pro tanto reasons.However, a distinction may be drawn between the two.As Shelly Kagan explains: "A pro tanto reason has genuine weight, but nonetheless may be outweighed by other considerations.Thus, calling a reason a pro tanto reason is to be distinguished from calling it a prima facie reason, which I take to involve an epistemological qualification: a prima facie reason appears to be a reason, but may actually not be a reason at all, or may not have weight in all cases it appears to.In contrast, a pro tanto reason is a genuine reason -with actual weight -but it may not be a decisive one in various cases."(KAGAN, 1989, p. 17) 51 SCHAUER, 2008SCHAUER, , p. 1953

56
SCHAUER, 1992, p. 89: "Raz's account of rules as including exclusionary reasons is largely consistent with the conclusions I have just reached.The primary inconsistency appears to be in the way in which Raz takes exclusionary reasons as incapable of override, claiming that an exclusionary reason 'always prevails' in cases of conflict with a first-order reason."as binding precedents are, but with the difference that they are not mandatory, but rather optional authorities.

FROM ACTION TO BELIEF: PERSUASIVE AUTHORITIES AS THEORETICAL AUTHORITIES
Schauer's treatment of non-binding precedents as optional authorities captures a very relevant feature of persuasive precedents, namely, the idea that courts have no legal duty to use them.To put it in Hohfeldian terms, they have a legal "privilege" 65 concerning their use.Whereas binding precedents must be followed or distinguished, but never ignored, persuasive precedents can be ignored without breaking the law 66 .
Nonetheless, insofar as the idea of optional authority replaces that of persuasive authority, it also obscures some important features which are better highlighted by adopting the rejected terminology.I would like to draw the attention to one of these features: persuasive authorities admit degrees of persuasiveness, that is, courts usually consider some authorities as more persuasive than others 67 .Thus, in general terms, a domestic court's judgement is treated as more authoritative than the judgements of a foreign court of the same hierarchy.In civil law countries, a Supreme Court's decision is more authoritative than a judgement from a Court of Appeals.The Court of Appeals from the same jurisdiction as a civil court is more authoritative than the judgment of a Court of Appeals from another jurisdiction, and so on.This is not, however, a fatal blow to the adoption of the idea of an optional authority.Arguably, degrees of persuasiveness may also account for degrees of optionality.The real problem is the idea of precedents as having practical authority which is embedded in such terminology.
There are serious reasons for doubting that non-binding authorities are best conceived of as having practical authority for the courts deciding the case.One major difficulty has been noted by Grant Lamond.He states that the "normal reason" 68 for deferring to the

binding itself immediately conjures up associations with its literal meaning of being 'fettered' or in some way physically constrained to do something, this is clearly not what binding precedents do. 196 REASONING
WITH PERSUASIVE PRECEDENT: THE ROLE OF PERSUASIVE AUTHORITY IN THE LAW TEORIA JURÍDICA CONTEMPORÂNEA 1:2-1, julho-dezembro 2016 © 2016 PPGD/UFRJ -ISSN 2526-0464, p. 194-213 seems binding, that is, if it does not want to follow it, then it has the burden of finding additional motives to distinguish the present case from the previous case.If this is true, then the main role of persuasive authorities is not to show ways in which the 'fetters' can be slipped, but rather to provide courts with a motive for not putting them on in the first place.In other words: the main role of persuasive authorities in the law is to provide courts with reasons for distinguishing.

The distinction between reasons for belief and reasons for action accounts for another parallel distinction between theoretical and practical authorities 198
. -based soundness of the actions that the authority is urging" 23 .Persuasion, on the other hand, is grounded on substantive reasons, which are always content-dependent, that is, its force derives not from the source, but from its content.Persuasion and authority are thus "inherently opposed notions" 24 ."The use of a source can be one or the other -it can be persuasive or it can be authoritative -but it cannot be both at the same time" 25 .Therefore, the very idea of a "persuasive authority" is self-contradictory.
. Emphasis added.But they do not change the balance of reasons.They exclude action on that balance 54 .For Raz, to say that a second-order reason can be outweighed by other consideration within its scope is to treat it not as an order, but as a mere request: "A request is made with the intention that it shall be taken as a reason for action and be acceded to only if it tips the balance.Orders are made with the intention that they should prevail in certain circumstances even if they do not tip the balance" 55 .
reasons only exclude a "careful look at a first-order reason" 59 , but they are compatible with "merely a perfunctory glimpse at it" 60 : Insofar as it is possible for an exclusionary reason to tell an agent to look just quickly, if possible, at the excluded first-order reason to see if this is one of the cases in which the exclusion of that factor should be disregarded, it changes the decision-making procedure from one in which the agent is expected to look at every first-order reason with equivalent care 61 .But once the exclusionary thesis has been assumed, is this "quick look" at first-order reasons even possible?As Cláudio Michelon, following the lead of Emilios Christodoulidis 62 , has pointed out, "it is not at all clear how the thesis that formal reasons always exclude other reasons for action could be made compatible with the qualification that sometimes some sorts of reason (…) can defeat the formal reason" 63 .
I think Raz's rejection of the possibility of a quick look at first-order reasons is a much more logical approach to authoritative reasons conceived as exclusionary reasons.However, Schauer's account is psychologically more compelling.In other words: Formal reasons are problematic.But if it is true that one of the differences between using formal reasons (Schauer) and being a formalist (Raz) is the admission of exceptions to authoritative rules 64 , then it seems more reasonable to be a full-blown formalist than to defend that formal reasons are not so formal after all.60Ibid.61SCHAUER,1992,pp.90-91.62CHRISTODOULIDIS,1999,p. 231.63MICHELON, 2006, p. 135.64CfATIYAH, 1986, 20ff.REASONING WITH PERSUASIVE PRECEDENT: THE ROLE OF PERSUASIVE AUTHORITY IN THE LAW TEORIA JURÍDICA CONTEMPORÂNEA 1:2-1, julho-dezembro 2016 © 2016 PPGD/UFRJ -ISSN 2526-0464, p. 194-213